93 Decision Citation: BVA 93-14687
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-38 467 ) DATE
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THE ISSUES
1. Entitlement to service connection for cysts of the nose, chest
and left temple.
2. Entitlement to service connection for a chronic lung disorder.
3. Entitlement to service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder.
4. Entitlement to an increased (compensable) evaluation for right
index finger fracture residuals.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Siegel, Counsel
INTRODUCTION
This matter first came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a rating action of
April 13, 1990, in which service connection for cysts, a chronic lung
disorder, and a nervous disorder was denied, and in which service
connection for right index finger fracture residuals was granted and
assigned a noncompensable evaluation; and a rating action of January
28, 1991, in which service connection for a nervous disorder to
include post-traumatic stress disorder was denied. These rating
actions were promulgated by the Louisville, Kentucky, Regional Office
(hereinafter RO). A notice of disagreement, pertaining to claims for
service connection for cysts and a chronic lung disorder, and for a
compensable evaluation for right index finger fracture residuals, was
received on June 21, 1990; at that time, the veteran also requested
service connection for post-traumatic stress disorder. The statement
of the case was issued on August 22, 1990, and the substantive appeal
was received on August 28, 1990. A notice
of disagreement pertaining to the RO's denial of service connection
for a nervous disorder, to include post-traumatic stress disorder,
was received on March 25, 1991, and a supple-mental statement of the
case to include that claim was issued
on April 30, 1991. A statement from the veteran's representa-tive,
dated July 10, 1991 may be construed as a substantive appeal relative
to that claim.
The case was received at the Board on July 30, 1991, and was docketed
on August 1, 1991. Written argument from the veteran's
representative, the Disabled American Veterans, on his behalf was
received by the Board on October 30, 1991.
In a decision dated February 6, 1992, the Board remanded this case in
order to accomplish additional development of the record. The RO
rendered a rating action on August 20, 1992, and issued a
supplemental statement of the case on August 24, 1992.
The case was again received at the Board, on December 29, 1992, and
was docketed on January 6, 1993. Additional written argument from
the veteran's representative, the Disabled American Veterans, on his
behalf was received by the Board on January 27, 1993. The case is
now ready for appellate review.
The veteran served on active duty from April 9, 1974, to September 4,
1974.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO erred when it denied
service connection for cysts of the nose, chest and left temple, for
a chronic lung disorder, and for a nervous disorder to include post-
traumatic stress disorder. It is specifically pointed out that the
report of his service entrance medical examination does not show the
presence of cysts, but rather that they were initially identified
after he entered service. It is also pointed out that he was treated
in service for what was believed to be bronchitis, and that since his
separation from service he has received treatment for mental
problems.
The veteran also in essence contends that the RO erred when it denied
a compensable evaluation for right index finger fracture residuals.
It is alleged that he has pain and limited right hand motion as a
result of this disability.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following review and consideration of all evidence and material of
record in the veteran's claims folder, and for the following reasons
and bases, it is the decision of the Board that the preponderance of
the evidence is against granting service connection for cysts of the
nose, chest and left temple, for a chronic lung disorder, and for an
acquired psychiatric disorder to include post-traumatic stress
disorder. It is also the decision of the Board, in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), following review
and consideration of all evidence and material of record in the
veteran's claims folder, and for the following reasons and bases,
that the preponderance of the evidence is against his claim for a
compensable evaluation for right index finger fracture residuals.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's claims has been developed.
2. Cysts of the nose, chest and left temple are shown to have been
present prior to the veteran's entrance into active service, and the
presumption of soundness with regard to his claim for service
connection for such cysts is rebutted.
3. The veteran's preservice cysts of the nose, chest and left temple
did not increase in severity during his period of active service.
4. An inservice lung disorder, alleged to have been bronchitis, was
acute and transitory, and was resolved without residuals; post
service lung problems are not shown to be related to the veteran's
active service.
5. An acquired psychiatric nervous disorder was not present in
service; post service psychiatric problems, variously diagnosed, are
not shown to be related to active service.
6. Post-traumatic stress disorder is not shown.
7. Right index finger fracture residuals are manifested primarily by
complaints of pain not associated with functional impairment; right
index finger ankylosis or arthritis is not shown.
CONCLUSIONS OF LAW
1. Cysts of the nose, chest and left temple were not incurred in or
aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1111, 1137, 1153
(West 1991); 38 C.F.R. §§ 3.303(c), 3.306 (1992).
2. A chronic lung disorder was not incurred in or aggravated by
wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1992).
3. An acquired psychiatric disorder, to include post-traumatic
stress disorder, was not incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d)
(1992).
4. The criteria for a compensable evaluation for right index finger
fracture residuals are not met. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4, §§ 4.40, 4.59, Diagnostic Codes 5153, 5225 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we find that the veteran's claims are "well grounded"
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is,
he has presented claims that are plausible. He has not asserted
that any records of probative value that may be obtained and which
are not already associated with his claims folder are available.
We accordingly find that all relevant facts have been properly
developed, and that the duty to assist him, mandated by
38 U.S.C.A. § 5107(a) (West 1991), has been satisfied.
Each of the issues on appeal is discussed below.
I. Service Connection for Cysts of the Nose,
Chest and Left Temple
As indicated above, the veteran contends that cysts of the nose,
chest and left temple were initially manifested during his period of
active service, and that service connection is warranted therefor.
After a review of the record, we find that his contentions are not
supported by the evidence, and that his claim fails.
The report of the veteran's service entrance medical examination,
dated April 4, 1974, shows that he was clinically evaluated as normal
in all relevant aspects, to include the skin. This report does not
indicate that the presence of any cysts was noted at that time. A
service medical record dated April 22, 1974, less than three weeks
later, however, shows that he was treated for sebaceous cysts on the
left side of the face and the right side of the nose. On May 17,
1974, he was treated for a "lump on the chest."
The initial question that must be resolved, therefore, is whether
these cysts had been manifested prior to the veteran's entrance into
service. We acknowledge that the report of his entrance medical
examination, as discussed above, does not contain any reference
indicating that cysts had been present at the time that examination
had been conducted. However, it is the opinion of a Department of
Veterans Affairs (hereinafter VA) physician, who examined the veteran
in June 1992 at the Board's request, that these cysts were the
product of a pathology that had been present prior to the veteran's
entrance into service:
The patient first reported the discomfort with
these cysts 13 days after [his] induction [on
April 9, 1974]. Generally these lesions take
several months if not longer to evolve to
palpable size and symptomatic concern. As such,
it is logical to presume this patient's process
was active and these lesions were present prior
to his induction into the military.
This report is of record and has been available for review and
rebuttal by the veteran and his representative. We note that neither
the veteran nor his representative has challenged the accuracy of the
findings contained therein, nor have they presented contrary medical
opinion. We accordingly find that the presumption of soundness, to
the effect that the veteran's nose, chest and left temple cysts were
initially manifested during his active service, has been rebutted.
38 U.S.C.A. §§ 1111, 1137 (West 1991); see also 38 C.F.R. § 3.303(c)
(1992).
Since it is shown that the veteran's cysts of the nose, chest and
left temple had been present prior to his entrance into service, the
next question that must be considered is whether those cysts
increased in severity during such service so as to constitute
"aggravation" of the disability. The service medical records show
that his various cysts were excised on apparently two occasions in
July 1974. Service medical records dated thereafter do not show that
he complained that these cysts had recurred, or that he was accorded
treatment for cysts. While the report of the June 1992 VA
examination indicates the presence of "a good deal of scar tissue" in
the cited areas, service connection for this scar tissue, even if it
could be shown that all of this scar tissue was the product of the
inservice excision of the cysts, cannot be granted unless it is
demonstrated that these cysts were "otherwise aggravated by service."
38 C.F.R. § 3.306(b)(1) (1992). The service medical records do not
show that any such aggravation occurred; to the contrary, we must
reiterate that the service medical records dated subsequent to the
excision of these cysts is devoid of any relevant complaints, or
indications of further treatment.
We must therefore conclude that the preponderance of the evidence is
against the veteran's claim for service connection for cysts of the
nose, chest and left temple. 38 U.S.C.A. §§ 1110, 1111, 1137, 1153
(West 1991); 38 C.F.R. §§ 3.303(c), 3.306 (1992).
II. Service Connection for a Chronic Lung Disorder
The veteran also contends that he has a chronic lung disorder as a
result of his active service, and that service connection for that
disorder is warranted. Again, however, after a review of the record
we find that his claim is not supported by the evidence, and
accordingly fails.
The report of the veteran's service entrance medical examination,
dated in April 1974, shows that his lungs and chest were clinically
evaluated as normal, and does not refer to any lung complaints or
problems. The service medical records dated thereafter do not show
any such complaints or problems until July 1974, at which time the
veteran complained of a cough of five weeks' duration; the treatment
record notes that a chest X-ray was negative, and indicates an
impression of bronchitis. The service medical records dated
subsequent to July 1974 do not refer to any further treatment for
bronchitis, or to any complaints of, or treatment for, any other lung
problems.
The veteran's post service medical records first indicate the
presence of lung problems in May 1989; a VA outpatient treatment
record dated in that month notes complaints of intermittent
substernal chest pain of three months duration. In this regard, we
note that the veteran, in his application for VA benefits dated in
January 1990, indicates that his "lung condition" had its onset in
1989, and that he had not been treated since service for this
"condition." The evidence does not demonstrate that the lung
disorder manifested in 1989 was etiologically related to the
veteran's inservice bronchitis that was treated 15 years previously,
nor does it demonstrate that the post service lung disorder was
caused by, or was otherwise related, to his active service. 38
C.F.R. § 3.303(d) (1992).
We must accordingly conclude that the veteran's inservice lung
disorder, identified as bronchitis, was acute and transitory, and was
resolved without residuals. We therefore find that the preponderance
of the evidence is against his claim for service connection for a
chronic lung disorder. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303(b) and (d) (1992).
III. Service Connection for an Acquired Psychiatric Disorder,
to Include Post-Traumatic Stress Disorder
The veteran further contends that he has a nervous disorder as a
result of his active service, and that service connection for this
disorder is therefore appropriate. He also contends that he has
post-traumatic stress disorder. As explained below, we have
determined, after a review of the evidence, that his claim fails.
The veteran's service medical records do not show that mental
problems of any type were either diagnosed or treated during his
period of service. In this regard, we must point out that the
veteran, on his applications for VA benefits dated in December 1989
and January 1990, does not refer to any inservice treatment for
mental problems, but merely notes "nervous condition 1974 to
present." In fact, the medical evidence first indicates the presence
of a nervous disorder in 1984, when, according to a VA outpatient
treatment record dated in that year, he was seen for "nerves." A VA
outpatient treatment record dated in June 1984 indicates impressions
to include depressive disorder. On a VA outpatient treatment record
dated in May 1990, it is noted that he cited a nervous problem of six
or seven years' duration.
We acknowledge that a May 1990 VA outpatient treatment record
indicates that the veteran reported that he "was seen at VA" in 1974,
and was at that time prescribed Valium. No medical records
pertaining to any such treatment have been associated with his claims
folder. We must again emphasize, however, that a considerable amount
of evidence, to include applications for VA benefits submitted by the
veteran in December 1989 and January 1990, is to the effect that he
first sought treatment for mental problems many years after his
separation from service. We must also point out that our analysis of
his claim for service connection for post-traumatic stress disorder,
set forth below, indicates that he is apparently less than truthful
in at least some circumstances when presenting his claims for VA
benefits.
We also acknowledge that the June 1984 VA outpatient treatment record
also indicates that the veteran cited a history of longstanding
"nervous" problems, to include a suicide attempt in 1971. However,
we note that the question of whether his nervous problems were
present prior to service, and were aggravated therein, is immaterial
with regard to our discussion as to whether service connection for a
nervous disorder is warranted, in that, as we have already pointed
out, the service medical records do not indicate that he complained
of any nervous problems during his period of active service, or that
such problems were either diagnosed or treated during that service.
The medical evidence dated in 1984 and thereafter indicates various
diagnoses as pertain to the veteran's nervous disorder. This
evidence, however, does not indicate that at any time a psychosis was
diagnosed. In fact, the most recent clinical record, which is the
report of a November 1990 VA psychiatric evaluation, indicates
pertinent diagnoses of organic mental syndrome secondary to
psychomotor epilepsy versus impulse control disorder, and histrionic
traits.
In brief, the medical evidence does not show the presence of any
nervous problems during the veteran's period of active service, and
indicates that such problems were initially manifested approximately
ten years after his separation therefrom. Moreover, the evidence
does not demonstrate that these post service mental problems were
related to his active service, or were caused thereby. 38 C.F.R.
§ 3.303(d) (1992).
Finally, we note that the veteran has also requested service
connection for post-traumatic stress disorder. We must point out,
however, that the medical evidence does not indicate that this
disorder is currently diagnosed, or that it has been diagnosed at any
time, notwithstanding the veteran's assertion that "this has been
diagnosed" by VA. See 38 C.F.R. § 3.304(f) (1992). The veteran has
not provided any history of inservice stressors, although we note
that the report of the November 1990 VA psychiatric evaluation shows
that "[h]e states that he was stationed in Saigon but doesn't
describe being in any combat situation. States while he was over
there he got hurt, dropped something on his right hand. States he
was sent back to the States and got a discharge then." The veteran's
service records, however, show that he was based at Ft. Knox,
Kentucky, and Ft. Gordon, Georgia, during his entire tour of service;
service medical records show that he injured his right index finger
in July 1974, while stationed at Ft. Gordon. His claim that he
served in Vietnam, which he made after requesting service connection
for a nervous disorder but prior to requesting service connection for
post-traumatic stress disorder, is, to put it bluntly, a total
fabrication. As such, it raises questions as to his veracity with
regard to his other claims, and the statements he has presented in
support thereof.
In view of the foregoing, therefore, we find that the preponderance
of the evidence is against the veteran's claim for service connection
for a nervous disorder, to include post-traumatic stress disorder.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1992).
IV. A Compensable Evaluation for Right Index
Finger Fracture Residuals
Service connection for right index finger fracture residuals was
granted by the Louisville, Kentucky, RO in a rating action of April
13, 1990, following a review of the veteran's service medical records
and the reports of post service medical treatment. At that time, a
noncompensable evaluation was assigned. The veteran has appealed
that rating, and contends that this disability is of such severity as
to warrant a compensable evaluation. After a review of the record,
we find that his claim is not supported by the evidence, and
accordingly fails.
The severity of an injury to an index finger, and the residuals
thereof, is ascertained for VA ratings purposes by application of the
criteria set forth in Diagnostic Codes 5153 and 5225 of VA's Schedule
for Rating Disabilities, 38 C.F.R. Part 4 (1992) (hereinafter
Schedule). Under these criteria, a compensable evaluation for an
index finger disability is warranted if that finger is ankylosed
(Diagnostic Code 5225), or if it has been amputated (Diagnostic Code
5153).
This standard has not been satisfied. The report of a VA orthopedic
examination conducted for rating purposes in November 1990 shows that
the veteran had movement in his right index finger. Neither this
report, nor any other record contained in his claims folder,
demonstrates that his right index finger is ankylosed, or that it has
been amputated.
In addition, a compensable evaluation may be awarded pursuant to the
provisions of 38 C.F.R. § 4.59 (1992), when arthritis is manifested
and accompanied by painful motion. This provision, however, is not
applicable in this case, in that right index finger arthritis has not
been shown. The report of a radiologic study of the right index
finger, conducted in November 1990 in conjunction with the VA
orthopedic examination, notes that "[t]he bone and joint structures
are unremarkable." Although a private medical record dated in July
1990 indicates diagnoses to include traumatic arthritis of the hand
and wrist, we must point out that this record does not specifically
refer to arthritis of the right index finger.
We also note that the provisions of 38 C.F.R. § 4.40 (1992) stipulate
that functional loss is to be considered for VA rating purposes in
assessing the severity of a disability. The November 1990 VA
orthopedic examination report notes the veteran's complaints of right
index finger pain, and indicates that he experienced difficulty with
right hand dexterity. This regulation, however, also stipulates that
any functional loss must be "supported by adequate pathology." The
November 1990 examination report specifically indicates that the
veteran had right thumb and index finger pinch grip of approximately
ten pounds, despite his demonstrated difficulty in picking up objects
from a flat surface. We also note that this report indicates "that
there were several dry excoriations on the right thumb which veteran
explained was (sic) due to the loss of strength and loss of
coordination of the right index finger...." Although this report
also indicates that the veteran's right index finger disability
"significantly impairs all of [his] daily activities in and out of
the home," we must point out that this report does not provide any
evidence of a pathology that could be related to his right index
finger fracture residuals, and in this regard we note that the
examiner - as opposed to the veteran - does not apparently attribute
the veteran's right thumb skin problems to his right index finger
disability.
We must accordingly conclude that the preponderance of the evidence
is against the veteran's claim for a compensable evaluation for right
index finger fracture residuals. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4, §§ 4.40, 4.59, Diagnostic Codes 5153, 5225 (1992).
ORDER
Service connection for cysts of the nose, chest and left temple is
denied. Service connection for a chronic lung disorder is denied.
Service connection for a nervous disorder, to include post-traumatic
stress disorder, is denied. A compensable evaluation for right index
finger fracture residuals is denied.
The appeal is denied in its entirety.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
U. R. POWELL PAUL M. SELFON, M.D.
LAWRENCE M. SULLIVAN
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.